Mary Lou McDonald (Dublin Central, Sinn Fein) | Oireachtas source

It is not my wont. I am sorry if a statement of the facts offends the Minister's delicate sensibilities, but there you go.

I have welcomed the introduction of this legislation and particularly commend the work of officials in the Department of Public Expenditure and Reform. The European Commission anti-corruption report on resourcing and the regulatory impact assessment of the Bill concluded that the legislation was a fair, balanced and proportionate approach which will ensure that Ireland's international reputation in preventing corruption is significantly enhanced. The EU has also recognised the State's progress; however, the Commission has sounded a note of warning. When dealing specifically with Ireland in its European anti-corruption report published this week the Commission stated that more work could be done to improve the capacity to prosecute and punish corruption cases in a timely manner.

While a number of issues affect the potential efficiency of anti-corruption agencies, there is no doubt that adequate and appropriate resourcing of such agencies is key. I have raised this matter with the Minister before. Research has shown that even where significant cases of illegality have been identified - for example, the Ansbacher tax scandal - prosecutions can be very difficult. The Commission's report identifies access to databases and intelligence and the provision of necessary resources and skills as factors affecting the success of anti-corruption agencies across Europe. Ireland is no different in this regard. Transparency International's 2012 national integrity study notes that "full analysis of trends is impeded by an absence of clear and consolidated statistics on investigations or prosecutions for corruption-related offences by law-enforcement agencies and the various regulatory bodies."

The legislation provides for the establishment of a disclosures recipient. The RIA states that it is hoped that the volume of reports to the disclosures recipient will be minimised by virtue of the structure of the legislation, which is designed to encourage reporting to an employer in the first instance. I support that staged approach. While the expenses associated with the appointment of a disclosures recipient are not anticipated to give rise to significant costs to the Exchequer, I would like to sound a note of caution. There is in the public mind an understandable reluctance to establish new public bodies, or what might be termed quangos, and that is fair enough. However, we need to be mindful of the danger of automatically regarding every new agency, regulatory body or service provider as surplus to requirements. That would be wrong, and I take a different view. While we need to be cautious about waste in the system, we need to resource agencies properly, particularly those that have oversight and accountability roles. In the long run, a fully resourced disclosures recipient office will more than pay for itself.

On interim relief, employees, be they public or private sector workers, must be protected when they report wrongdoing. Whistleblowers are regularly portrayed by those they make complaints against as difficult or contrarian. This is true the world over. Their motivation is questioned and retaliation is often a first response by those who employ them. Those who expose wrongdoing need legal protections and it is very welcome that the State recognises this. My colleague Senator Kathryn Reilly raised the need for an interim relief provision in the legislation and I thank the Minister for engaging constructively on this matter. Concern remains in the event that an interim relief order is in place and an employer who is found to have acted correctly seeks to recover the moneys paid before the conclusion of the case. That matter is still outstanding and I look forward to discussing it with the Minister on Committee Stage.

Section 19 of the Bill amends the Garda Síochána Act 2005 by requiring the Minister for Justice and Equality to make regulations providing procedures for protected disclosures by members of the Garda Síochána. In light of recent events and controversies, it would be desirable and helpful for us to see those regulations. The Minister might clarify the status of that process and precisely the procedure for these regulations to take effect.

Transparency International Ireland, which has made an exceptionally positive contribution to this legislation, has suggested a number of additional amendments to the Bill which merit consideration by the Minister. It suggested that volunteers should be provided for in the Bill. We cannot encourage citizens to give up their time to support their communities and then not protect them if they expose wrongdoing in an organisation. It has also been proposed that volunteers be afforded immunity against civil proceedings, including qualified privilege against defamation proceedings.

There is a concern the current wording of the definitions may exclude external auditors, accountants and professional advisors. Those supplying contracts for services should be free to make a protected disclosure where there is a failure on behalf of his or her client to comply with legal or codified stands. Fear of a civil action should not deter such persons from making a protected disclosure.

Section 5 does not adequately address breaches of "soft law" mechanisms, such as professional codes or ethical guidelines. Limiting compliance to "any legal obligation" can exclude mismanagement of conflicts of interest by providers of professional services, breaches of client confidentiality, mismanagement of client funds, abuse and misuse of charitable donations. Transparency International also points out that while public sector codes, such as the code of conduct for officeholders, code of conduct for members of the Legislature, code of practice for the governance of State bodies, and the codes of conduct for employees of local authorities and councillors have statutory effect, a breach of any of these may not automatically amount to a breach of legal duty.

Section 16 appears to place the onus on the persons making a disclosure to make it known that they do not want their identity disclosed. In other words, they are responsible for confidentiality. This introduces a particular risk to workers who have accidentally made a protected disclosure by seeking advice on a matter related to wrongdoing or where that person's identity is released by a third party, other than an employer, without their knowledge. Transparency International advises that the onus should always be on the person to whom the protected disclosure was made to treat as confidential the identity of the person making a disclosure.

Attention has also been drawn to an amendment submitted by Senators Zappone, van Turnhout, Mac Conghaíl and O'Brien, which seeks to assess the effectiveness of the legislation annually. This amendment was already raised with the Minister on Report Stage in the Seanad, so I will not rehearse the arguments here. However, I intend to pursue the matter on Committee Stage.

I would like to conclude by commending the work of Transparency International Ireland, which continues to operate the Speak Up helpline for whistleblowers. In the absence of this overarching legislation, this organisation has championed the rights and protection of those who speak up against corruption or wrongdoing. Finally, I am sure the Minister would join with me in commending all of those men and women, from different walks of life, who at different times and junctures have stepped forward and taken a huge risk. They have been quite courageous in speaking out and speaking up about wrongdoing.

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